Key Tenure Commission Decisions in 2013

The Tenure Commission was fairly quiet in 2013, presumably as the Commission and its constituents tried to digest and adjust to the statutory revisions of the last several years. Perhaps the most important action has come in the Court of Appeals, where one key case was decided, and several others are moving toward decision in 2014.

Cona v Avondale School District , STC 11-61 (2012), was the first case decided by the Tenure Commission dealing with the "not arbitrary or capricious" standard for teacher discipline adopted by Public Act 100 of 2011. In Cona , a tenured teacher was convicted of operating a motor vehicle while impaired and sentenced to probation. He thereafter violated his probation twice, each involving consumption of alcohol and marijuana. After the second probation violation, he was sentenced to 30 days in jail, which required him to miss some 17 school days, and he then misled the district as to true reason for his absence until the district learned he was actually in jail. The Board of Education sought to discharge Mr. Cona. The Administrative Law Judge assigned to the case agreed with the district that the new "not arbitrary or capricious" standard applied since the charges were brought after the standard and the new statute took effect, even though all the conduct was before Public Act 100. The ALJ also found the facts as presented by the district to be true, and that under the "not arbitrary or capricious" standard they justified discipline. The ALJ nevertheless concluded that the consequence of discharge was too severe, and instead imposed a loss of 20 days' pay.

The Tenure Commission rejected the ALJ's decision on the level of discipline, upholding the Board's discharge decision. The Commission defined the new standard, holding that a Board's decision is "arbitrary and capricious" "if it is based on whim and caprice and not on considered, principled reasoning." The Commission recognized that the "not arbitrary or capricious" standard is "highly deferential" to school districts, but cautioned that despite this deference the Commission's review is not a "mere formality" or a "rubber stamp" of Board-imposed discipline. The Commission concluded, "Our duty is not to fashion the penalty we ourselves would prefer but to review the controlling board's decision for arbitrariness and capriciousness."

The Court of Appeals granted leave to appeal, and the case was argued in early November 2013. One week later, the Court of Appeals issued a published opinion affirming the Tenure Commission and thus upholding the teacher's discharge. 2013 Mich. App. LEXIS 1813 (2013). The Court confirmed that the applicable standard was the "not arbitrary or capricious" standard in place when the charges were filed. The Court also fully agreed with the Tenure Commission's deference to the Board's determination of the proper level of discipline - in this case, discharge. The Court held that there was substantial evidence in support of discharge. Mr. Cona has since applied to the Michigan Supreme Court for leave to appeal.

Awaiting a decision by the Court of Appeals, most likely in 2014, is the Commission's decision in Halliburton v River Rouge School District , STC 11-64 (2012). In that case, the teacher directed racial epithets at students and disparaged students to their faces or in their presence. The Commission affirmed the ALJ's finding of misconduct and determination that discharge was not arbitrary or capricious. The Commission rejected the district's contention that the teacher's contributions to the community were irrelevant in determining discipline, finding that that evidence should be considered. The Commission concluded, however, that in this particular case they were outweighed by the seriousness of the teacher's misconduct. The Commission's decision process suggested a higher level of review than the deference indicated in the Cona decision. The teacher appealed the discharge determination, and the district cross-appealed on the issue of what evidence should be considered in determining the appropriate consequence.

Most of the Tenure Commission decisions issued in 2013 involved challenges to layoff or recall decisions. Many observers and participants had believed that, with the repeal in 2011 of MCL §38.105, requiring the recall of laid off teachers on a seniority basis, and the enactment of MCL §380.1248, requiring that layoff and recall decisions be based on teacher effectiveness, there was no longer a basis to challenge layoff or recall decisions to the Tenure Commission. The Commission has determined otherwise, concluding that it still has the right and responsibility to review layoff or recall decisions where it is alleged that those decisions were made in bad faith or were a subterfuge to avoid teachers' tenure rights.

In Wright v Flint Community Schools , STC 12-11 (2013), and Copp v Plymouth-Canton Community Schools , STC 12-12 (2013), the Commission reaffirmed its jurisdiction to determine whether layoff or recall decisions were made in bad faith or constituted subterfuge to avoid tenure rights. These decisions were consistent with Commission decisions in Aubert v Reed City Area Public Schools , STC 12-16, and Baumgartner v Perry Public Schools , STC 12-13, both decided in late 2012. The Court of Appeals has granted leave to appeal in Baumgartner, Aubert and Wright . The cases have been consolidated, briefed, and are awaiting argument. They are likely to be decided in the first half of 2014, and should thereby determine the scope, if any, of Commission jurisdiction over layoff and recall decisions.

Gadille v Atlanta Community Schools , S TC 12-36, was decided in July 2013, and also concerned a layoff decision. With the Commission having decided, in the above cases, that it had jurisdiction to review a layoff decision claimed to have been a subterfuge, Gadille proceeded to full hearing. The Commission held that the burden of proving bad faith or subterfuge is on the teacher asserting those contentions; declining to impose on the district the burden of proving the lack of bad faith or subterfuge. The Commission then agreed with the ALJ that the teacher had failed to carry his burden of proving bad faith or subterfuge, and thus affirmed his layoff. Gadille was not appealed from the Commission.

A key discharge case decided by the Commission in 2013 was Douglas v Bridgeport-Spaulding Community Schools , STC 12-18 (2013). In Douglas , the ALJ upheld a teacher's discharge for insubordination and use of excessive force on students, but refused to uphold a discharge for unsatisfactory performance, due to the lack of an IDP for the teacher addressing her performance issues. The insubordination and excessive force activities had occurred before the end of the first year in which an IDP was required, and the district did not bother with an evaluation or IDP for a teacher on her way to a discharge. The Tenure Commission affirmed the discharge for misconduct, citing the deference to the Board's determinations as required by Cona. The Commission then reversed the ALJ's refusal to permit discharge for unsatisfactory performance due to the lack of an IDP, holding that no IDP had been required under the prior law, and that the teacher never reached the point of an annual review under current law. The Court of Appeals declined to review the case,

In Boyne City Public Schools v Ringle , STC 13-11 (2013), the district asked the Commission for a declaratory ruling regarding when one of its teachers would earn tenure. The teacher had been evaluated as "satisfactory" in 2009-2010 and in 2010-2011 under prior law; and then "minimally effective" in 2011-2012 and "effective" in 2012-2013 under the evaluation requirements of MCL §380.1249. The question was whether this teacher became tenured after his four years of service under MCL §380.1248b's grandfather clause, notwithstanding that he could not show three consecutive years of "effective" or "highly effective" evaluations. The Commission recognized that this issue had not been anticipated by the Legislature. The Commission interpreted the statute to require that for teachers who began probation in 2008-2009 or 2009-2010, the requirement of three years of "effective" or "highly effective" evaluations does not apply, since those teachers would not have three annual evaluations under the new law before their four year probationary period ended. Those teachers that began work in 2010-2011 or later would have three such annual evaluations, and thus the three year requirement would apply. The teacher in this case thus achieved tenure after four years, notwithstanding the single "minimally effective" rating.

Finally, in Turner v Grand Blanc Community Schools , STC 13-10 (2013), the teacher claimed to be entitled to tenure after having worked several years in a public school academy; then three years as a teacher in Grand Blanc; then three years as a Grand Blanc school principal. The Commission upheld the ALJ's conclusion that tenure had not been earned. The Commission held that by statute a teacher in a public school academy is not considered a teacher for the purpose of continuing tenure, and thus her years in the PSA do not accumulate tenure credit. The Commission went on to hold that the teacher's three years as an elementary principal likewise did not count, since the statutory requirement that a teacher be "certificated" requires a teacher to hold a teaching certificate "which is valid for the position to which he or she is assigned." A teaching certificate is not required for a school administrator, and thus her teaching certificate was not valid for that position. Without her time teaching in a PSA and as a principal in a public school, the teacher had only her three years as a teacher in Grand Blanc, which was not sufficient to provide tenure.

If you have questions about tenure-related matters, please contact Mark McInerney at (313) 965-8383, mmcinerney@clarkhill.com , or another member of Clark Hill's Education Law group.